The opinion
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-20223
Summary Calendar
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In The Matter of: TOMMIE RAY SANFORD
Debtor.
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KAY BROWN,
Appellant,
versus
TOMMIE RAY SANFORD, doing business as Tommy Ray's,
Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
(CA-H-94-2452)
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July 5, 1996
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:*
At issue in this appeal from a district court order affirming
the bankruptcy court is whether the debtor's liability for a
judgment imposed by a state trial court, in which he (Tommie Ray
Sanford) was found liable pursuant to the Texas Dram Shop Act for
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
injuries caused by an intoxicated patron of his bar, was
dischargeable. The bankruptcy and district courts both held that
debt to be dischargeable and not encompassed by 11 U.S.C. §
523(a)(6), which excepts from discharge those debts for willful and
malicious injury by the debtor to another entity. We AFFIRM.
I.
On October 2, 1990, Kay Brown was seriously injured when her
automobile was struck by another automobile. The other driver, Ed
Reasoner, was intoxicated at the time of the accident; he had left
"Tommy Ray's", a bar owned by Sanford, immediately prior to the
accident, and had been drinking continuously at the bar for several
hours.
Brown sued Sanford in state court; he failed to appear; and
Brown was awarded judgment for $1.9 million against Sanford d/b/a
Tommy Ray's. The judgment provided that Sanford was liable for
selling alcoholic beverages to an obviously intoxicated person, in
violation of Tex. Alco. Bev. Code Ann. § 202 (The Texas Dram Shop
Act); and that Reasoner's intoxication was the proximate cause of
Brown's injuries.
Sanford filed under Chapter 7 of the Bankruptcy Code in April
1993, and Brown filed her Complaint to Determine Nondischarge-
ability that July, claiming that Sanford's conduct was "willful and
malicious" and thus nondischargeable under 11 U.S.C. § 523(a)(6).
The bankruptcy court found that Sanford did not personally serve
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drinks to Reasoner and held that, although liable to Brown under
state law, the acts giving rise to that liability were at worst
negligent, and accordingly were not encompassed by the willful and
malicious standard required for nondischargeability. The district
court affirmed.
II.
We review the district court's review of the bankruptcy court
de novo, applying the same standard applied there. The bankruptcy
court's findings of fact are reviewed only for clear error, e.g.,
In re Missionary Baptist Foundation of America, Inc., 712 F.2d 206,
209 (5th Cir. 1983); questions of law and mixed questions of law
and fact, de novo. E.g., Frame v. S-H, Inc., 967 F.2d 194, 202
(5th Cir. 1990).
Brown urges that the bankruptcy court erred when it found that
the debt owed by Sanford as a result of his liability under the
Texas Dram Shop Act was dischargeable. For the reasons given by
the district court in its thorough opinion, we find no error. We
conclude that the court's factual finding that Sanford did not
personally sell any drinks to Reasoner is not clearly erroneous,
and agree with its holding that Sanford's actions, because he had
no personal involvement, were not willful, but rather, at worst,
negligent. Moreover, we agree with both lower courts that,
regardless of Sanford's liability under Texas state law for the
injuries Brown received, for purposes of the Bankruptcy Code,
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Sanford's actions were not a "willful and malicious injury by the
debtor". 11 U.S.C. § 523(a)(6).
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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